Privacy vs publication: the fight over SA's matric results
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With a week to go before the 2024 matric results are made known, the Department of Basic Education (DBE) and the Information Regulator are set to battle it out Tuesday whether the results will be released in newspapers, with the Information Regulator standing its ground that doing so will go against the Protection of Personal Information Act (POPIA).
In papers before the Gauteng High Court, Pretoria, chairperson of the Information Regulator, Pansy Tlakula, stated that the DBE will not suffer any harm if it is interdicted from publishing the results other than by simply issuing the matriculants' results at the schools which they attended or through the departments' SMS platform.
She said in this way the results are accessed only by the learners without compromising their personal information.
"The DBE only has to give the matric results to the relevant learners or their authorised guardians or parents. The Information Regulator and the learners stand to suffer harm by the publication of the 2024 matric results in the media," Tlakula said.
The matter is expected to be heard as an urgent application and has been vigorously opposed by the DBE.
In November, the Information Regulator issued an enforcement notice which prohibits the DBE from publishing the 2024 matric results in newspapers.
The DBE is meanwhile challenging the ban and filed papers in an effort to set aside the enforcement notice. It argued that its court bid suspends the enforcement notice for now.
The DBE's Elijah Mhlanga said the department has received consent from candidates who wrote their exams and a 2022 court order in which Judge Anthony Millar ordered the publication of the results - without using the names or surnames of the candidates - also gives them a right to publish the results.
Tlakula meanwhile said in her affidavit that by virtue of being organs of state, the department had a higher duty to respect and uphold the rule of law.
"The respondents have, however, recently acted in a manner which indicates that they do not respect the rule of law and the Information Regulator's processes. It is for this reason that the Information Regulator has decided to bring this application."
She said the 2022 judgment was obtained by agreement at the time between the applicants and the department, without the court having entertained the merits of the matter.
"The court did not make any ruling on the lawfulness of publishing matric results in newspapers," she said.
Tlakula made it clear that this application is about the DBE complying with the enforcement notice orders, which she said have full legal force and effect until such time that they are set aside on appeal.
"This court is not called upon to inquire into the lawfulness of the orders, as it is a matter for another court some other day."
"This application was necessitated by the DBE's refusal to comply with the orders and its failure to timeously appeal against the orders…This court is only required to accept that the orders exist in fact and in law and that they have full legal force and effect and that they cannot be ignored by the DBE."
Tlakula added that an assessment on whether the publication of matric results in newspapers by the DBE complies with the POPIA, which came into effect in July 2021, found that publishing the results in the media will defy the Act.
She said she requested the minister to confirm that the DBE will comply with the orders not to publish the results, but the minister did not respond. This left the Information Regulator with no choice but to urgently turn to court, she said.
According to Tlakula, if the department went ahead in publishing the results, matric learners will have their results published in the media without their consent and therefore, in contravention of their right to privacy by disseminating their personal information.
In relation to the 2025 matric examination results, she stated that the DBE must obtain the consent of learners who are above the age of 18 or the parents/guardians of those below 18 before publishing their results in newspapers.
Tlakula said in complying with the requirement of consent as contained in POPIA, and considering the large number of learners who write matric examination every year, the DBE must develop a system which will enable it to obtain the consent of the learners or their parents/guardians before the publication of their matric results in newspapers.
"The DBE should design a system in a manner that will ensure that the consent given by the learners, or their parent/guardian complies with the definition of consent in the Act," she advised.
AfriForum meanwhile requested to be added as a co-respondent to the legal battle.
Alana Bailey, AfriForum's Head of Cultural Affairs, said the 2022 order remained in place which gives consent to the publishing of matric results in the media.
Cape Times